Anonymous sourcing, under oath

12/28/13 10:24 AM EST

Few journalists wish to be enmeshed in litigation that pries into the dark arts of reporting, but some of the most interesting insights into the inner workings of modern-day journalism come from those rare occasions when reporters are questioned under oath about their craft.

Last week, The Washington Post's Paul Farhi published a story asserting that the use of anonymous sources in news stories is on the rise and describing many of the explanations for granting anonymity as of little use to the reader. The Post article included some recent examples from a Post sports story, as well as a two-year-old example from POLITICO.

It seems beyond dispute that many of such explanations inserted into stories, like "due to the sensitivity of the situation," are a waste of time and space. However, some — including some that have appeared in The Washington Post — are also not literally true, according to a deposition then-Post reporter Allan Lengel gave in 2006. He also suggested that in some instances editors made up the explanations to satisfy a policy requiring them, without really knowing whether they were accurate.

During a Privacy Act lawsuit scientist Steven Hatfill brought over reports and statements fingering him as a suspect in deadly mailings of anthrax in 2001, Lengel was asked about a 2004 Post story in which the newspaper said federal investigators probing the anthrax attacks "have narrowed the likely source to a short list of labs, including Fort Detrick, the Dugway Proving Ground in Utah and Louisiana State University, according to law enforcement sources who spoke on the condition that they not be named, citing government rules."

When lawyers for Hatfill pressed Lengel on what "government rules" the sources had cited, the reporter replied that the sources really hadn't mentioned any rules and that an editor inserted the phrase.

"That was a sort of boilerplate," Lengel told Hatfill's attorneys at the deposition. "First of all, it should never have said citing, because they didn't cite it. ... My editor stuck that in and — because we were trying to have a policy of explaining why people aren't using their names ... I think it was an incorrect wording of that, frankly, because nobody really cited government rules." (The episode is discussed a bit further here.)

Lengel, who later left the Post and now writes for websites Deadline Detroit and Ticklethewire.com, said in an interview this week that he thought the Post's policy of requiring such explanations was "silly."

"I never really liked having to put all these silly explanations in there for that," Lengel said. "I thought it was obvious if someone was not using their name, there's a reason for it. I used to kid that we should put: 'They wanted to remain anonymous for fear they would lose their jobs and have to send their kids to public school.' It was just a little bit silly that we always put that in there so the reader felt better, but I didn't think it added much."

In 2008, the federal government agreed to pay Hatfill $2.8 million to settle his lawsuit, but only after some fairly unpleasant times for journalists involved in the matter. Former USA Today reporter Toni Locy faced potentially ruinous fines of up to $5,000 a day and a possible stay in jail for contempt of court for not revealing her confidential sources. The contempt citation was dismissed after the case was settled.

In some respects, Privacy Act lawsuits like the one Hatfill filed against the government have the potential to intrude further into reporting methods than do more conventional libel suits filed against news outlets.

A suit quite similar to Hatfill's was filed earlier this year by Tampa socialite Jill Kelley over leaks relating to her connection to an investigation into the relationship between then-Gen. David Petraeus and writer Paula Broadwell. Kelley claims government officials unlawfully disclosed information from the probe, including descriptions of her private emails.

The government has moved to dismiss the case, but if that move fails, journalists could again be drawn in to describe their reporting techniques and could potentially face fines or jail time for not disclosing their sources. Among the individuals Kelley's lawyers want to take testimony from is former Washington Post edtior Douglas Frantz, now a top adviser to Secretary of State John Kerry.